Saturday, December 4, 2010

The US Small Business Administration (SBA) has revised its Standard Operating Procedure (SOP) related to post-default environmental risk management. This procedure is contained in SOP 50 51 3, and became effective November 15, 2010. The revised SOP defines when and how a Post-default Environmental Investigation is conducted 1) before taking title to a property, and 2) before taking control of a business using hazardous substances.

The type and scope of the Post-default Environmental Investigation required varies depending on the risk of contamination, and SOP 50 51 3 provides the minimum standards. All Transaction Screen, Phase I and Phase II Environmental Site Assessments must be performed by an Environmental Professional and be accompanied by a Reliance Letter.

The SOP defines the process to be followed, which includes:

Determining whether any underground liquid fuel storage tanks are located on the Property,

Determining the NAICS codes for the Property's uses since the SBA Loan was funded, and whether any of the NAICS codes match codes on the list of NAICS Codes of Environmentally Sensitive Industries,

Completing any additional testing, record searches or other inquiries recommended by the Environmental Professional who conducted the initial investigation.

In addition, if taking control of a business that handles hazardous substances is contemplated, the Post-default Environmental Investigation may also include an environmental audit to determine whether the business has the required environmental permits and is in compliance with applicable environmental laws. In some cases, testing of fixtures and equipment related to the operation of the business, including underground storage tanks, lines and related equipment may also be required.

If the Post-default Environmental Investigation Report concludes that the property is contaminated, SBA's prior written approval must be obtained. Regardless of the conclusions reached in the Post-default Environmental Investigation Report, SBA's prior written approval must be obtained prior to taking control of a business that handles hazardous substances.